It's nearly impossible for undocumented minors in Florida who have been “abused, abandoned, or neglected” to apply for the green cards that they are legally entitled to.

January 22, 2018

Immigrants from El Salvador and Guatemala board buses to cities across the country to stay with friends and family while they wait for an immigration-court hearing. (AP Photo / Eric Gay)

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In October 2015, Lucia, 13, was raped and impregnated. When she told her parents, they called her a “cualquiera,” or “slut,” and tried to send her from their home in Florida back to Guatemala. A case worker had to inform Lucia’s parents that they couldn’t dispatch their daughter against her wishes to another country. Unable to discard her, Lucia’s parents forbade her from reporting her rape to the local police. Instead, they demanded that she extort her rapist. But ICE deported him before he could be blackmailed. Finally, when she was four or five months pregnant, Lucia’s parents told her she needed to pay her “debts,” so Lucia dropped out of high school and got a job at a plant nursery. At that time, her parents began to charge her $350 a month in rent.

To Lucia’s attorney, Rina Gil, her story was an obvious example of parental neglect and abuse, and Lucia, an undocumented minor, should therefore be eligible to apply for a green card under a program called Special Immigrant Juvenile Status (SIJS). (Because she is a minor and victim of abuse, Lucia’s name has been changed to protect her identity.)

In September 2017, Gil, a staff attorney at Catholic Legal Services in Miami, filed a private petition for dependency, asking the Miami juvenile court to declare Lucia dependent on the state of Florida and therefore not eligible for deportation. Gil knew that for the past few years juvenile judges in Florida had been skeptical of dependency petitions filed by immigrant minors, but she thought that, since the abuse happened in Florida, Judge Cindy Lederman would look compassionately at Lucia’s case. Gil had even heard that Lederman was more understanding than other Florida judges “when it comes to immigrant cases.”

“I figured—this is a child. She was raped… She’s not in school. She has no one taking care of her. There’s no way that you can say that this child was not neglected or abused or abandoned,” Gil said.

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Despite acknowledging Lucia’s father’s mistreatment, the judge denied her dependency and, with it, her best shot at protection from abuse and deportation. “I just don’t know what happened that day,” Gil told me.

Since the fall of 2013, around 175,000 immigrant minors, mostly from the Central American countries of Guatemala, Honduras, and El Salvador, have arrived at the US-Mexico border asking for protection and resettlement. When unaccompanied minors are detained, ICE transfers them to the Office of Refugee Resettlement, which sends the children to stay with any family or friends they might have in the United States while they wait for an immigration-court hearing.

Many of these children have suffered abuse or neglect or have been wholly or partially abandoned by their parents and therefore qualify for SIJS. This status allows children to apply for a green card and eventually citizenship, with the caveat that they can never apply for immigration relief for their parents.

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Despite being enacted almost three decades ago in 1990, SIJS is still not well known outside of legal circles. The application process is complicated by the fact that children must get an order from a state court that certifies that they have been abused, abandoned, or neglected by their parents and that it’s in their “best interest” not to be returned to their country of origin. As thousands of kids began appearing in juvenile courts across the United States, states reacted differently. Some, like New York and Maryland, passed laws that expanded the population of kids who could apply for this program. While others, like Nebraska, restricted which unaccompanied minors have access to the courts. But no state has been as aggressive in denying kids the ability to get this visa as Florida.

In 2015 Miami opened a new children’s courthouse. Squares were cut out of walls and filled in with colored glass, so on sunny days blocks of orange, purple, yellow, and red checker the floor. At the entrance stands a statue of a big bronze bear hugging four cubs. It looks like a mother bear playing with her children, until you notice the gavel lying to her left. The bear is a judge, there to protect kids.

But soft-hued lighting and endearing art doesn’t diminish the tension. This is where parents lose their children, give them up, or are reunited after a separation.

Robert Latham has spent a lot of time here as a lawyer and the associate director of the Children and Youth Law Clinic at the University of Miami School of Law, where he represents kids in custody hearings, dependency, and anything else having to do with children and the law. He explained to me, “Florida has a very broad child-welfare law. It has a lot of ways that it recognizes how a child can be maltreated.” To illustrate his point, Latham pulled out Chapter 39—a book that consists of hundreds of pages of definitions of actions or inactions that qualify as abuse, abandonment, or neglect.

Latham said that under state law it shouldn’t matter for a dependency ruling whether the kid’s home is in the US or abroad. “The statute tasks the judge with understanding if this is a good thing for the kid,” Latham said, but added that these days “the people implementing the law seem to be bending over backward to make sure that these laws are not used to help these [undocumented] kids.”

As more unaccompanied minors were resettled in Florida, judges started to raise concerns about these cases, Latham and other lawyers said. In 2013, a judge’s 30-page decision on a child’s dependency petition circulated in Florida’s legal community. While the judge ultimately granted the immigrant child’s petition, he enumerated the apprehensions of many judges: If the child was safe now in Florida, why was a finding of dependency necessary? Why wasn’t the Department of Children and Families, Florida’s child-welfare agency, involved in these cases? How was it possible to investigate and prove that a child was abused in a foreign country? Wasn’t abuse in a foreign country in infancy or early childhood “too remote” to be used for declaration of dependency?

Latham and other immigration attorneys have pointed out that these questions are never asked of children who are US citizens. “This idea that a parent could be absolved of the neglect of a child by the passage of time,” Latham said, “no one does this for native kids. It’s only with immigrant kids that this abandonment was too long ago.”

Then in fiscal year 2014, around 5,000 unaccompanied minors arrived in Florida, a third of whom were resettled in Miami-Dade County. As more minors came before the court, judges began to question, sometimes aggressively, why these immigrant kids were in their courtrooms at all and deny these cases. These children face removal, and usually, Latham said, “back in their home country is a parent waiting to hurt them—or no parent at all.”

(I reached out to the Miami-Dade juvenile court, but was told that no judges could speak to me due to Judicial Ethics Canons.)

Angela Vigil, a lawyer in Miami who took on these kids’ case as part of her firm’s pro bono practice, remembered that hearings became tense and uncomfortable around 2015. The judge would sit high on a bench, and Vigil would stand next to her client, “a 15 or 16 or something brown boy, who has been traumatized and abused.” Vigil’s clients were teenagers, and some looked like adults to the judges. “I don’t think that helps either. It’s not what the dependency court thinks of itself as protecting,” she said.

Lawyers appealed the denials in the dependency courts and by the summer of 2015, these cases moved to Florida’s appellate courts. In July of that year, the Third District Court of Appeal upheld the denial of a petition of a Honduran minor. The judges argued that the child had been abandoned by his father at birth, too long ago, and was now living safely with his mother in Florida, and therefore, they ruled he did not qualify for a declaration of dependency.

In a separate concurrence, former Chief Judge Frank Shepherd wrote that he disagreed with the entirety of the law surrounding SIJS: “We correctly decline to subordinate ourselves to the whim of the United States Congress in this case. The purpose of the dependency laws of this state is to protect and serve children and families in need, not those with a different agenda.”

Judge Shepherd’s language shocked immigration lawyers. Angelina Castro, an immigration lawyer in Stuart, Florida who has been working on these types of cases for almost two decades, said she started to notice judges using pronouns like “these” and “those” in their rulings, which seemed to make a distinction between US kids and foreign kids.

“There’s a bit of hiding behind the federalist arguments,” Castro explained. “Call it what you want, but it’s still wrong. Our laws specifically say that we do not deny justice based on someone’s color, nationality, race, gender. We’re not supposed to do that, and we’re doing it. We do it everyday.”

A few days later, the Third District Court issued another denial. This time in the case of a 17-year-old Salvadoran girl, referred to in court documents by her initials, B.Y.G.M., because she is a minor. She stated that her father had abandoned her in infancy, so she had grown up with her grandparents. She was now living with her mother in Florida. The federal statute allows for kids to apply for SIJS when “reunification with one or both parents is not viable.” But Florida’s courts disagreed. They found that the child’s abandonment was “too remote” and “did not cause B.Y.G.M. any harm.” Chief Judge Shepherd stood firm that these cases are matters for immigration and should not be heard in state courts.

Shepherd retired from the bench in 2016 and joined a private law firm in Miami. In an interview in March 2017, he said he saw these cases as just a stamp for these kids to go to the federal government and apply for a green card. “The petitioners were seeking to rely upon alleged abuse, abandonment, or neglect in one of these countries, and sometimes not even that,” Shepherd said. “And whether that’s true or not is pretty hard to determine in El Salvador, and [the Florida Department of Children and Families] is unlikely to seek to make such a determination. They have enough problems, issues, and truly abused and abandoned children in this state to take care of.”

These decisions set the law in many counties in Florida. After they came down, Vigil said, in many of the counties, especially Miami-Dade, “if you bring a petition, it will be dismissed offhand.” Some judges, lawyers said, would grant the child’s dependency but cross out the specific language in the petition that the child needed in order to apply for SIJS.

“It’s not that these are people that don’t have compassion, it’s that they don’t think that this is how it’s supposed to work,” Vigil said. “And that these issues about other people’s kids are supposed to be resolved in other people’s courts—immigration court for example.”

But it shouldn’t matter what Florida’s judges believe, Vigil said: “The truth is the federal government has decided that it is absolutely the purpose of the Miami dependency court to protect abused, neglected, and abandoned children in front of it, period. It doesn’t matter if it happened in Gainesville or Guatemala.”

Many county courts in Florida said they do not keep statistics on the numbers of children who have filed private petitions relating to SIJS. But, according to what appears to be incomplete data from Miami-Dade county, between 2015 and 2016, the number of petitions filed dropped by half, even as unaccompanied minors were arriving in greater numbers. During the same time period, denials increased by about 10 percent.

At the same time that Florida was restricting access to this visa, Maryland and New York did the opposite. Federal law allows for immigrants to apply for SIJS until they turn 21, but state juvenile courts usually lose jurisdiction over children once they reach 18, so many immigrant youths are unable to apply.

Maryland and New York both passed laws allowing minors to access juvenile courts until they turned 21. The two states, along with California, have also affirmed that children can file petitions against only one parent.

Still, when Vigil speaks to other juvenile and immigration attorneys around the country and tells them what’s happening in Florida, lawyers tell her they worry that these denials will spread to other states.

And it may be beginning to happen.

Sandra Gibbs, a lawyer located near Nashville, keeps an unofficial list of the counties that are granting the petitions and those have started denying them.

“Sevier County, mid-2015 to 2016, with much struggle I got five approved,” Gibbs said in a phone interview. “But now the judge says he’s not going to grant them anymore. Sumner County is not good. Montgomery County was approving these, and now the juvenile court is deciding not to grant them anymore.” Gibbs said Davidson County, where Nashville is, and Wilson County are still more receptive.

Gibbs said it’s so difficult to file these cases in counties in eastern Tennessee, that she has mostly stopped: “Once I am hearing that a county is not going to grant these anymore, I’m honest; I tell my clients to move.”

In May of 2017, it looked like the Florida courts might take a step in a different direction. The Florida Supreme Court struck down parts of a previous ruling and declared that judges must give immigrant kids hearings on their petitions. Initially, lawyers and advocates hoped that the higher court’s decision would mean that judges would hear more cases and possibly grant more petitions. In the months since, however, lawyers said they have not seen much change. Most lawyers have stopped filing these cases in dependency courts and have looked to other possible avenues of immigration relief for their clients.

By 2017, Gil said she and other lawyers at Catholic Legal Services understood that their chances of winning most dependency petitions were low, but they thought Lucia’s case was different. The abuse hadn’t been remote; it had happened in Florida.

After Lucia’s petition was denied, Gil said that in court the judge added, “Now that this case is closed here, we could go to immigration court, where these cases belong.”

But immigration court doesn’t hear cases of parental abandonment and neglect. Granted, children can apply for asylum, but that process can take years and is more confrontational than juvenile court. Asylum is also much harder to win: In 2016, only 10 percent of asylum applications were granted.

Gil told Lucia that she wanted to appeal her case to a higher court, but in December of 2017, Lucia told Gil that she didn’t want to fight it. “She said she didn’t want to go through it again. She said she was done with it. And I don’t blame her,” Gil said.

“The scary thing is that a lot of [the unaccompanied minors] don’t understand what they have gone through is not right. They treat rape, they treat abuse, they treat punching and kicking like it’s something normal, like it’s something that you have to go through,” Gil said. “You have to explain to them that this is wrong, that in this country, you are not allowed to hit a child. What I always tell my kids after I sign a case is that, this country protects children. And after this case, I just felt like, how do I say that now? I don’t know that I am telling them the truth.”